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American Bar Association
ABA Division for Public Education

The Right to Bear Arms: Starter 1

State Constitutions: Massachusetts and Wisconsin

The following provision granting citizens the right to keep and bear arms in the Massachusetts constitution (1780) was understood by people at the time to permit them to keep guns for the purpose of meeting militia service obligations only, as opposed to civilian, non military use. *In addition, recall that the Massachusetts constitution was ratified in the midst of the Revolutionary War with Great Britain (1775-1783) and that during 1779-1780, the Continental Army suffered significant losses at the hands of the British standing army. Most colonists of the time believed professional armies posed a threat to individual liberty.

The provision below granting the right to keep and bear arms from the Wisconsin constitution has been interpreted by the state courts as fundamental, but not absolute. It does not preclude the "reasonable" regulation of guns. The legal standard applied to a law is whether it is a reasonable exercise of "police power." (State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328 01-0350).

*Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford University Press, 2006), 26-27.

Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. —Ratified 1780

Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.As created Nov. 1998



Focus Questions

1. The Second Amendment right to keep and bear arms is one of the few rights in the Bill of Rights that has not been "incorporated"—or made to apply to the states - through the Fourteenth Amendment. Do the Massachusetts or Wisconsin constitutions provide gun-related rights that exceed the rights protected by the Second Amendment to the U.S. Constitution? Do you think the question of gun rights is better regulated at the state or federal level? Why?

2. Many state constitutions use the phrase "lawful purpose" to define the right to bear arms. How would you define a "lawful purpose"? Do you think this term leaves room for various forms of interpretation or misinterpretation? Why?

3. Shooting is an internationally recognized sport. The first Olympic Games were held in 1896, and included three shooting events. Today, they include 17. According to the National Association of Shooting Sports Athletes, "Only here in America has competitive shooting been placed in an unfavorable light." In your opinion, how might notable historical events, such as war, or the passage of time, influence social views about gun ownership? What historical events come to mind? How might history and social viewpoints be reflected in the Massachusetts and Wisconsin constitution?

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